Christie and Repatriation Commission

[2004] AATA 1048

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1048

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/1547

VETERANS' APPEALS DIVISION		)
Re		ROY FRANCIS CHRISTIE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date8 October 2004

PlaceSydney

Decision The decision under review is affirmed.

(Sgd) MD ALLEN

…………………………………
  Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - claim for PTSD - conflicting medical opinions - necessity for Tribunal to be satisfied of the facts upon which opinions based - on balance of probabilities applicant did not suffer from PTSD

Veterans' Entitlements Act 1986 s120

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) 37 AAR 383

Benjamin v Repatriation Commission (2001) 70 ALD 622

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

REASONS FOR DECISION

8 October 2004 Senior Member M D Allen

1.      By application made the 16^th day of October 2002 the Applicant sought review of a decision by the Respondent rejecting his claim to have post-traumatic stress disorder accepted as a war-caused disease.

2. As at the time the relevant incidents giving rise to the claim for PTSD were alleged to have occurred the Applicant was on operational service as that term is defined in section 6C of the Veterans’ Entitlements Act 1986 the standard of proof in this matter is that mandated by ss120(1) and (3) VEA.

3.      Subsection 120(1) and (3) VEA provide that any disease suffered by a veteran and claimed to be war-caused shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.  The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him.  Pursuant to s120A VEA a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so called Statement of Principles (SoP) issued by the Repatriation Medical Authority.

4.      Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.

5.      The manner in which the Tribunal must approach its task where a SoP exists was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 namely:

“1.       The Tribunal must consider all the material which is before it and determine whether that material points to an hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact-finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.         If the material does not raise such a hypothesis, the Tribunal must then ascertain whether there is in force a SoP determined by the authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.        If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196(B)(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

4.        The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved.”

6.      Notwithstanding the manner in which the Tribunal is required to approach this matter as outlined above, the first step is to ascertain the specific injuries or diseases suffered by the Applicant, see Repatriation Commission v Hancock (2003) 37 AAR 383. In making this finding the standard of proof is that of to the Tribunal’s “reasonable satisfaction” and in which the SoP regime established by s196B VEA has no part to play, see Benjamin v Repatriation Commission (2001) 70 ALD 622.

7.      At the outset, in making a decision as to whether the Applicant does indeed suffer from a PTSD that decision can only be made upon the evidence given by the Applicant and having regard to the history taken by those medical practitioners who have examined him.  Where that history is put in doubt the Tribunal must base any findings upon what it regards as the correct history.  In other words, where facts are relied upon in support of an expert opinion these facts must be independently proved to the satisfaction of the Tribunal, see Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705.

8.      In this matter both Dr Koller, who is the Applicant’s treating psychiatrist and Dr Lewin referred to two incidents which did not occur during any period of operational service.  Dr Lewin does not regard the Applicant as having a PTSD whereas Dr Koller advanced the somewhat remarkable opinion that if the events relied upon by the Applicant to constitute stressors resulting in his PTSD did not occur then some other unidentifiable event or events must have.

9.      The Applicant’s history to the Tribunal was that he was born on 3 January 1942 and entered the Royal Australian Navy on 14 March 1960.  He enlisted as a rating but achieved promotion and when he retired from fulltime duty he held the commissioned rank of Commander.  Currently, he still in the Naval Reserve and is employed on naval duties two days a week.

10.     The first incident said to have been a stressor causing or contributing to his PTSD was in a period between 23 June 1962 and 19 May 1963 when on duty aboard HMAS Yarra in Malaysian waters.  At the time, he was the Captain’s steward, and he recalls coming up on deck when a native vessel or dug out was observed.  The vessel was found to contain three bodies that were brought aboard HMAS Yarra and placed into body bags.  The Applicant assisted in retrieving the bodies and then observed them being placed in body bags.

11.     The second incident relied upon was the crash of a sea venom aircraft on 28 April 1968.  In that crash the observer, a Lt Kennell was killed and his body not recovered.  The Applicant’s evidence was that whereas he was the Captain’s steward aboard HMAS Melbourne he had become friendly with Lt Kennell and had an informal arrangement with him that he would do Lt Kennell’s laundry for him.  Lt Kennell had introduced the Applicant to his (Lt Kennell’s) wife and whenever there was a function Lt Kennell’s wife had made a point of speaking to the Applicant although he was only a steward.  He said that he had a great affection and regard for Lt Kennell but was conscious of the officer steward relationship.

12.     Immediately following the aircraft crash in which Lt Kennell was killed the Applicant was distressed and he recollects now that a day or two later he visited the sick bay complaining of headaches.

13.     The Applicant continued in the Navy and obtained a commission in 1972.  In 1981 he transferred from being a catering officer to a general list officer, which meant a change of duties.  In 1981 whilst posted as the Captain’s secretary at HMAS Penguin he was referred to a neurologist who made a diagnosis of nervous tension (see Exhibit R7 at p93).

14.     During the year 2000, the Applicant was given an ultimatum by his wife as to problems he was experiencing.  He was angry, sleepless, having nightmares and difficulty in concentrating.  There is also evidence that he was drinking heavily. These factors had been present for some 10 years.  He consulted a naval medical officer who referred him to Dr Koller, psychiatrist who made a diagnosis of PTSD.

15.     There is some evidence that Dr Koller has not always adhered to his diagnosis of PTSD.  In a memorandum dated 21 November 2000, a medical practitioner employed by the Department of Veterans’ Affairs alleges that Dr Koller stated that in the light of discrepancies regarding the alleged stressors he could not stand by his diagnosis.  Suffice it to say that in evidence to the Tribunal Dr Koller was adamant that the Applicant suffered a PTSD.

16.     Dr Lewin, psychiatrist took a lengthy history from the Applicant and in a report dated 4 July 2002 to the Respondent concluded that the diagnosis of PTSD could not be confirmed.

17.     In coming to his opinion Dr Lewin quite significantly stated:

“It was noted that he had not sought treatment at any stage prior to consulting Dr Koller in the last couple of years.  Mr Christie’s functioning during his twenties and thirties suggest that he was capable, striving, energetic and competent. One would expect that if he was suffering from Post Traumatic Stress Disorder he would have experienced some difficulty and that this would have been reflected in his functioning at the time.  The possibility that his current symptoms arise because of recent events (including the matters relating to his prostate surgery) needs to be considered.”

Dr Lewin’s opinions in this regard take on additional significance when compared to the opinions of Dr White.

18.     The first stressor alleged by the Applicant namely the recovering of bodies from the native vessel while the Applicant was aboard HMAS Yarra has been called into question by the Respondent.  A “historians” report states that no record of this event exists in the monthly reports of HMAS Yarra for the period in question.  The then Commander of HMAS Yarra is also reported to have stated that he has no recollection of this event, and if it had occurred it would have been mentioned in the monthly report of proceedings.

19.     When one examines the monthly reports of proceedings annexed to Exhibit R4 it is clear that the minutiae of ships life are recorded.  This being so it is inconceivable that an event such as the recovery of bodies would not have been noted.

20.     In a report dated 19 September 2001 to the Applicant’s RSL representative, Dr Koller states:

“I asked Mr Christie to write out in detail his observations.  When he started to do this he became very distressed. It then became clear that what he describes as facts that occurred are nightmares.  He reports nightmares as facts that happened.  He has difficulty in distinguishing between these two levels of consciousness.”

21.     The above report by Dr Koller confirms to me, and I so find, that the incident recovering bodies did not occur.

22.     During the course of the evidence of psychiatrist Dr Dinnen who had been called by the Applicant, the following passage occurred:

“Question: And if I were to find as a fact that the traumatic event deposed to did not, in fact, occur, where does that leave me?

Dr Dinnen: Well, that leaves you with finding that the patient doesn’t have PTSD.”

23.     The second incident relied upon by the Applicant did occur, however it is difficult to appreciate how this can be regarded as a severe stressor leading to PTSD as opposed to an understandable grief reaction.

24.     Dr White, psychiatrist examined the Applicant on behalf of the Respondent  In his evidence he stated:

“Well, if I can preface this: when I interviewed Commander Christie I found that he had progressed from a steward to an officer and a senior position and that he was still serving while claiming to be mentally ill, and I struggled with that.  In psychiatry we try and measure disability impairment because lots of people feel depressed from time to time, anxious from time to time.  If I wash my hands half a dozen times that’s normal. If I wash it 200 times a day then it interferes with my functioning and a normal behaviour becomes a symptom.

Now, to have a diagnosis of mental illness, the person has to have the characteristic symptoms; they have to have the impaired cognition; they have to appear mentally ill at the interview; and they have to be disabled; and Commander Christie’s career is one of progressive promotion.  So, in my view, that, despite the symptoms which he described he didn’t fulfil the necessary and essential criteria for mental illness. And this is central to practical and medico-legal psychiatry…

So the first issue is that I don’t think he fulfilled the criteria of any mental illness…”

25.     In his report which is Exhibit R3, Dr White concluded that the Applicant does not suffer from a formal psychiatric disorder or from alcoholism which can be attributed to naval service.

26.     The Diagnostic and Statistical Manual of Mental Disorders 4^th edition in listing the diagnostic criteria for PTSD states that the person’s response to the traumatic event must involve intense fear, helplessness or horror.  Whereas the Applicant was quite clearly affected by the death of Lt Kennell there is no evidence that his reaction was one of intense fear, helplessness or horror. 

27.     Dr Koller stated that he referred the Applicant to Dr Altman for a second opinion.  Dr Altman’s report dated 2 April 2003 simply states:

“In my opinion Mr Christie does suffer from a chronic post-traumatic stress disorder as a result of his service in the Royal Australian Navy.”

This report while no doubt sufficient for Dr Koller’s purposes is totally inadequate for curial purposes. It is no longer sufficient, if it ever was, to merely proffer the opinion of an expert and require your opponent to destruct it (see ‘Glass Seminars on Evidence’ at p81).”

28.     Taking into account the fact that the Applicant had a long and successful career in the Royal Australian Navy and that one of the events upon which his claim for PTSD is based did not in fact happen I am more persuaded by the opinions of Drs Lewin and White that the Applicant does not have a PTSD.

29.     That does not mean that the Applicant may not have some other form of psychiatric illness although Dr White does not believe he does and the whole basis of his case was that he suffered from a PTSD.  If the Applicant does suffer some other unspecified psychiatric illness there is no material before me which conforms to any Statement of Principle.

30.     As I am reasonably satisfied that the Applicant does not suffer a PTSD and the material before me has raised no other condition regarding which any reasonable hypothesis of connection with service exists, then the decision under review will be affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed:         (E.Pope)           .....................................................................................
  Associate

Dates of Hearing  22 June 2004 and 27 September 2004 
Date of Decision  8 October 2004
Solicitor for the Applicant          Mr B Winship, Fairbairns Lawyers

Advocate for the Respondent   Ms T McConnell, Department of Veterans’     Affairs